In Saada v Golan, Not
Reported in Fed. Rptr., 2021 WL 4824129 (2d Cir.,2021) Respondent Narkis Aliza
Golan, B.A.S.’s mother, appealed the District Court’s March 29, 2021 order and
accompanying judgment denying her Rule 60(b) motion for relief from the
District Court’s earlier May 5, 2020 order directing that B.A.S. be returned to
Italy. Seeing no error in the District Court’s denial of Golan’s Rule 60(b)
motion, the Court affirmed the March 29, 2021 order and the accompanying April
6, 2021 judgment.
In July 2018, Golan, a U.S. citizen, and
B.A.S. (then two years old) travelled to the United States from Milan, Italy,
where the two of them, along with Petitioner Isacco Jacky Saada, B.A.S.’s
father and an Italian national, had been living. Though Golan and B.A.S., who
had been born in Italy, were originally scheduled to return to Italy the next
month, Golan decided to stay in the United States and move to a confidential
domestic violence shelter in New York. In September 2018, Saada commenced this
case by filing a petition before the District Court seeking B.A.S.’s return to
Italy pursuant to the Hague Convention on the Civil Aspects of International
Child Abduction. After a nine-day bench
trial, the District Court concluded that B.A.S.’s “habitual residence was
Italy. See Saada v. Golan, No. 18-CV-5292 (AMD) (LB), 2019 WL
1317868, at *15 (E.D.N.Y. Mar. 22, 2019) (“Saada I”), aff’d in
part, vacated in part, and remanded, 930 F.3d 533 (2d Cir. 2019) (“Saada
II”). While the District Court concluded that returning B.A.S. to Italy
would expose him to a “grave risk of harm,” the psychological harm accompanying
exposure to domestic violence perpetrated by Saada against Golan, it was
satisfied that a series of “undertakings” by Saada, including his promises to
stay away from Golan after she and B.A.S. returned to Italy and to visit B.A.S.
only with Golan’s consent, were sufficient to “ameliorate the grave risk of
harm to B.A.S. upon his repatriation to Italy.” The District Court
ordered that B.A.S. be returned to Italy. On appeal, the Second Circuit agreed
with the District Court’s habitual-residence determination, but concluded that
the District Court erred in granting Saada’s petition because “the most
important protective measures it imposed [we]re unenforceable and not otherwise
accompanied by sufficient guarantees of performance.” Saada II, 930 F.3d at 537. It
remanded the case and instructed the District Court to conduct further
proceedings to determine the availability of alternative ameliorative measures.
The parties subsequently sought, and were granted, an Italian
court order that, inter alia, required Saada to stay away from Golan,
restricted Saada’s access to B.A.S., and ordered Saada to undergo certain
psychological evaluations and counseling. In light of this development, on
remand, the District Court again granted Saada’s petition, and also ordered
Saada to pay Golan $150,000 to cover her and B.A.S.’s expenses upon their
return to Italy. Saada v. Golan, No. 18-CV-5292 (AMD) (SMG), 2020 WL
2128867, at *5 (E.D.N.Y. May 5, 2020) (“Saada III”). On appeal, the
Second Circuit affirmed the District Court’s judgment. Saada v. Golan, 833 F. App’x 829. 834 (2d
Cir. 2020) (summary order) (“Saada IV”).
Soon after
the Court issued a mandate returning this case to the District Court, on January
25, 2021, Golan filed a Rule 60(b) motion for relief from judgment, arguing
that “newly discovered evidence” justified reconsideration of the Court’s order
in Saada III. See Fed. R. Civ. P. 60(b)(2). Golan
offered what she claimed was the transcript of a November 2020 phone call
between Saada, his father, and a rabbi, and to which Golan was surreptitiously
listening, in which Saada purportedly told the rabbi that he did not trust
Golan as a mother because “she bring[s] men[ ] to her place to have sex with
her” and that he was in possession of a “picture of [B.A.S.] with different
men[ ].” When asked by the rabbi how he knew what Golan was doing in her
apartment, Saada responded, “I cannot tell you how I know, but I have proof[ ]”
and that “[t]he lawyers who [inaudible] investigators ... so I know.” Golan
argued that Saada’s November 2020 statements demonstrated that he violated a
“court order.” Golan argued that Saada’s
violation of the October 16, 2018 order cast doubt on Saada’s willingness to
abide by Italian court orders. Saada explained that the “investigators” he
referenced during the November 2020 phone call were hired by his counsel after
a man, one Kfir Hazan, contacted Saada alleging that he had been romantically
involved with Golan, that she was engaging in “high-risk” behavior around
B.A.S., and that he now wished to offer damaging information about her. Saada’s
attorneys likewise represented to the court that they had hired an investigator
for the limited purpose of ensuring that B.A.S. was safe, and that the
investigator had not disclosed the respondent’s address to Saada or his
attorneys.
The
District Court denied Golan’s motion. It declined to disturb its prior order on
the basis of “vague statements,” and in light of “no other evidence to support
[Golan’s] claim that [Saada] tried to find out where she lived during the
pendency of the petition.” Saada V, 2021 WL 1176372, at *5. The
District Court also pointed out that evidence demonstrated that Golan had sent
Saada her address as early as April 2020 so that he could send things to
B.A.S. It further concluded that Saada
did not violate the District Court’s October 16, 2018 directive because it was
Saada’s counsel that engaged the investigator.
Ultimately, the District Court concluded that “[k]nowledge of the
limited investigation that did take place would not have changed the outcome”
of its order granting the petition because “it does not establish that [Saada]
has violated an order of this Court or that the protections put in place in
Italy will be insufficient ....”. Golan appealed the District Court’s denial of
her Rule 60(b) motion.
The Second Circuit affirmed.
It pointed out that it reviews a denial of Rule 60(b) relief for
abuse of discretion. United States v. Int’l Bhd. of
Teamsters, 247 F.3d 370, 391 (2d
Cir. 2001). Rule 60(b) relief “is
generally not favored” and granted only upon a showing of “exceptional
circumstances.” The burden of proof rests on the party seeking the relief, and
when the existence of “newly discovered evidence” forms the basis of a motion,
the movant must demonstrate that (1) the newly discovered evidence was of facts
that existed at the time of trial or other dispositive proceeding, (2) the
movant must have been justifiably ignorant of them despite due diligence, (3)
the evidence must be admissible and of such importance that it probably would
have changed the outcome, and (4) the evidence must not be merely cumulative or
impeaching.
The Second Circuit noted that Golan argued that the District
Court’s principal error lie in its refusal to hold an evidentiary hearing in
response to her Rule 60(b) motion. It
held that in the Rule 60(b) context, a
party is not automatically entitled to an evidentiary hearing. As a general
matter, in the Rule 60(b) context,
evidentiary hearings should be held to decide disputes concerning “material
issues of fact.” Flaks v. Koegel, 504 F.2d 702, 712 (2d Cir. 1974); cf. Puglisi v. United States, 586 F.3d 209, 213 (2d Cir. 2009) (noting
that “[i]f material facts are in dispute” concerning an ineffective assistance
of counsel claim, a court should usually hold an evidentiary hearing). It reviews
a district court’s refusal to grant a hearing for abuse of discretion, 219
Ingersol St., 1999 WL 822492, at *2 (citing United States v. 8136 S. Dobson St.,
Chicago, Ill., 125 F.3d 1076, 1086
(7th Cir. 1997)); see In re Sims, 534 F.3d 117, 132 (2d Cir. 2008)
(describing the abuse-of-discretion standard), and found no such abuse here. The
District Court concluded that had it known of the “limited investigation” prior
to its granting of Saada’s petition, this “would not have changed the outcome”
and it still would have granted the petition. Saada V, 2021 WL 1176372, at *5.
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